Archive for May, 2012

Wal-Mart’s decision to drop its membership in the American Legislative Exchange Council is a milestone in the remarkable effort to drive a wedge between ALEC and the large corporations that have used the organization to promote their self-serving policy agenda at the state level.

At least 18 companies are reported to have cuts ties to ALEC in the face of a pressure campaign spearheaded by groups such as Color of Change, Common Cause, People for the American Way and the Center for Media and Democracy.

The campaign—which has also prevailed against the likes of Amazon.com, Coca-Cola, Kraft Foods, McDonald’s and Procter & Gamble—is already one of the most successful corporate accountability initiatives ever undertaken, and more wins are likely to occur. Yet there are also high hurdles to overcome.

Those companies that have succumbed to the anti-ALEC pressure are pretty much all consumer products firms that were concerned about the possibility of boycotts on the part of customers outraged at ALEC’s role in promoting “stand your ground” laws like the one in Florida at the center of the controversy over the shooting of Trayvon Martin.

A decisive win against ALEC will require splitting off a much larger portion of ALEC’s sizeable corporate membership, including companies that are not fazed by consumer unrest. Quite a few firms of this sort are represented on ALEC’s Private Enterprise Board, whose membership roll reads like a rogue’s gallery of corporate irresponsibility.

The pharmaceutical industry, which has fought countless battles over pricing and safety and has been hit with billions of dollars in fines for illegal marketing practices, has several representatives on the board, including the senior vice president of its trade association PhRMA and officials from Bayer, GlaxoSmithKline and Pfizer.

Big tobacco, another battle-hardened industry, is represented by officials from Altria and Reynolds American. The national chair of the board, W. Preston Baldwin, is listed as being affiliated with the corporate strategy consulting firm Centerpoint360, but he used to be an executive with the chewing tobacco producer UST (now owned by Altria).

Also represented on the board are two leading villains of the natural resources sector—petroleum behemoth and climate-change denier ExxonMobil and Peabody Energy, the largest private-sector coal producer in the world. For good measure, the board also includes a representative of Koch Industries, which is not only heavily involved in petrochemicals but is also, through the Koch Brothers, one of the primary backers of groups promoting the same kind of rightwing agenda pushed by ALEC.

In other words, the effort to cleave off ALEC’s corporate members will increasingly mean taking on companies that are not only notorious but which have a long track record of fending off challenges from labor, environmental and other progressive forces.

It’s true that Wal-Mart, whose vice president for public affairs was serving as secretary on the ALEC board until the company’s departure, is also part of that category. Yet Wal-Mart has been less combative of late, due in large part to the fallout from a foreign bribery scandal and its ongoing effort to give the impression of being an environmental leader. And it is a consumer-oriented company.

So what will it take to knock out these other ALEC loyalists? There’s no easy answer, but it may be necessary for the campaign to treat the relationship of those firms to ALEC in a different way. Until now, the campaign has focused on making ALEC seem like a rogue organization that has adopted positions that diverge from the interests of the target companies. The online petition being circulated by Common Cause states:

Stop risking your company’s reputation. Your association with the American Legislative Exchange Council aligns you and your stockholders with a partisan drive to deny millions of Americans their right to vote, an attack on public schools, and the proliferation of “Stand Your Ground” laws that promote vigilantism.

Your company probably joined ALEC to get help in lobbying for legislation that impacts your business. But ALEC’s agenda these days puts the pursuit of private profit ahead of the public interest. It pulls business leaders like you into a radical ideological crusade involving issues that have nothing to do with your company.

Yet many of the companies listed above continue to support ALEC precisely because it is pursuing a radical ideological crusade that does have something to do with their interests. The anti-ALEC campaign will have to put more emphasis on the core issues that attract companies to the organization: business tax reduction, deregulation, privatization and other “fundamental principles of free-market enterprise, limited government, and federalism at the state level,” as the ALEC mission statement puts it.

ALEC’s identification with “stand your ground” and voter suppression opened an extraordinary opportunity to put the organization on the defensive, but in the end it is this broader corporate agenda that has to be confronted.

Those seeking to defend Mitt Romney’s track record at Bain Capital argue that private equity is a special kind of business. The firms that are taken over, they tell us, are often in bad shape, and restoring them to health may involve some painful surgery.

The problem with this claim is that the harsh remedies applied at supposedly sick companies have often been used at healthier ones as well—and this practice is exemplified by the career of none other than Mitt Romney. Prior to his tenure at Bain Capital, Romney spent a decade as a management consultant, mostly at the firm of Bain & Co., which launched Bain Capital.

When the young Romney joined Bain & Co. in the late 1970s, management consulting was starting to be regarded with the same kind of mistrust today directed toward private equity and hedge funds. Sure, the consultants were celebrated by some as wizards of the corporate world, yet their magic frequently involved getting large companies to embark on radical restructuring that resulted in the elimination of many jobs and the multiplication of the workload of those workers who remained. Although their advice was frequently dressed up in strategic jargon, firms such as McKinsey were essentially perpetuating Frederick Taylor’s time-and-motion studies of the 1920s.

Bringing in an outside consulting firm enabled corporate managers to carry out drastic measures that would otherwise face insurmountable internal resistance. And the results could be disastrous, as seen in the retrenchment plan that Booz Allen cooked up for supermarket chain A&P in the 1970s.

Consultants fueled the manic business restructuring of the 1980s by making corporate executives think that joining in was a matter of survival. “If a chief executive officer isn’t thinking of restructuring, he’s not doing his job,” Jim Farley of Booz Allen insisted to the Wall Street Journal in 1985.

Bain & Co. was not satisfied with simply giving aggressive advice to companies; the firm wanted to be involved in implementing the changes. That could lead to trouble. During the 1980s, when Bain had some 60 of its staffers in its London office working on the Guinness account, it became embroiled in a scandal over illegal stock manipulation by the brewer during the takeover of a rival beverage company.

The creation of Bain Capital was a vehicle by which Bain’s principals could not only help implement restructurings but also profit from them in ways that were even more lucrative than consulting fees. Romney, who was tapped to run the offshoot, admitted to a Forbes interviewer (11/30/87) that his outfit worked very closely with Bain & Co., often hiring partners from the consulting firm to run the companies it was buying. Bain Capital also did deals involving companies that had been clients of Bain & Co. One of Romney’s first big scores involved the buyout of Accuride, a truck wheel unit of Firestone, which had been a long-time user of Bain’s consulting services.

Romney’s ties to Bain & Co. remained so close that when the consulting firm ran into financial problems of its own—exacerbated by a huge cash-out by founder Bill Bain and other senior executives—Romney was called in to complete a rescue that included the internal use of downsizing and restructuring measures it had so often executed at client firms.

The continuity between Romney’s work at Bain & Co. and his slash-and-burn activities at Bain Capital is suggested by the track record of his clients during his consulting years, which at Bain lasted from 1977 to 1984. It’s been reported that those clients included Monsanto, Corning, Burlington Industries and Outboard Marine.

Using the handy Fortune 500 online archive, I tracked the total headcount at the four companies during Romney’s Bain & Co. years. Each one of them had a dramatic drop: 14 percent at Monsanto, 17 percent at Corning, 25 percent at Burlington Industries and 33 percent at Outboard Marine. Together, they shed more than 36,000 workers from the end of 1976 to the end of 1984. Undoubtedly, there were other factors at work, but Romney and his Bain & Co. colleagues must have played a significant role in bringing about that job destruction.

Private equity can be a ruthless business, but its methods are not entirely unknown to the rest of the corporate world, especially when management consultants get into the act. Mitt Romney, whose business experience is supposed to qualify him for the White House, should answer for his actions at both Bains.

Recent passage of a piece of federal legislation on a broadly bipartisan basis was considered unusual enough for the Washington Post to treat it as front-page news. Yet what was most significant about the measure to extend the life of the U.S. Export-Import Bank was not its bipartisanship but rather the way it revealed a profound confusion on the part of both major political parties about how the federal government should relate to big business.

The fate of the Ex-Im Bank, which for decades has served mainly as a tool to promote exports by large U.S. manufacturers, had come into question after it was targeted by tea party types in Congress. While conservatives are usually inclined to do everything possible (short of bailouts) to assist corporations, many had come to accept the view that the Ex-Im Bank was an unjustified form of government intervention. Utah Senator Mike Lee denounced the bank’s operations as “corporate welfare that distorts the market and feeds crony capitalism.”

Supposedly anti-corporate Congressional Democrats joined with the likes of the U.S. Chamber of Commerce and the National Association of Manufacturers to defend the Ex-Im Bank. House Democratic Leader Nancy Pelosi said that Congress had to send “a strong signal to American businesses: we will help them get their products into markets abroad, and in doing so, we will create jobs here at home.” Independent Vermont Senator Bernie Sanders, on the other hand, maintained his long-time opposition to the bank.

In the end, the corporatist wings of the two major parties prevailed, but not before the Ex-Im Bank had been pummeled by conservatives who had begun denouncing the institution as “Boeing’s Bank.” They have a valid point. A huge portion of the agency’s resources have long been devoted to that one company. If you look at the list of loans and long-term guarantees in the bank’s annual report, Boeing’s name shows up repeatedly—more than 40 times last year, far more than any other company. The company got assistance in its deals to sell planes to airlines in more than 20 countries such as Angola, Indonesia and Tajikistan.

The right has assumed the role of Ex-Im Bank critic once occupied by the left. Back in 1974 the anti-imperialist magazine NACLA’s Latin America & Empire Report published a critique of the bank that concluded with the following statement: “Confronted by a world increasingly hostile to U.S. imperialism, strategists will employ the credit levers of the Eximbank in the coming years to punish countries that nationalize American corporations, and to reward those nations that cater to U.S. commercial interests.”

Eliminating Ex-Im Bank’s credit assistance was high on the list of programs proposed for elimination in the Aid for Dependent Corporationsreports issued by the Ralph Nader group Essential Information in the 1990s. By that point libertarian groups such as the Cato Institute were also speaking out against the bank and other forms of corporate welfare. Also lining up against the bank were environmental groups concerned about its role—along with that of the Overseas Private Investment Corporation—in enabling hazardous projects such as the Three Gorges Dam in China.

The contemporary right’s misgivings about the Ex-Im Bank have nothing to do, of course, with anti-imperialism or environmental protection—and everything to do with absolutist ideas about the role of government. The problem these conservatives face is that the actual behavior of large corporations frequently bears little resemblance to pure free-market principles.

Boeing, for instance, is not only perfectly willing to accept federal export assistance but has also sought and obtained billions of dollars in state and local economic development subsidies for its U.S. plants. Its decision to locate a Dreamliner production facility in South Carolina garnered a subsidy package estimated to be worth more than $900 million. The company’s hold over the Palmetto State is so strong that it drove a wedge between South Carolina’s two paleo-conservative U.S. Senators during the Ex-Im debate, with Jim DeMint holding to laissez-faire principles while Lindsey Graham warned that eliminating the bank would jeopardize aerospace jobs.

When it comes to labor relations issues, Boeing suddenly turns into an ardent opponent of government. When the National Labor Relations Board took seriously an allegation by the Machinists that the company’s investment in South Carolina was a form of anti-union retaliation, Boeing screamed bloody murder and got support from all of the state’s leading politicians—and most of the corporate world.

It will be interesting to see how conservatives handle this tension between lionizing large corporations and demonizing them. The outcome of the Ex-Im debate suggests that, for now, corporatists retain the upper hand across the mainstream political spectrum.

The recent announcement that a corporation agreed to pay $1.6 billion to settle regulatory violations would normally be considered significant news, but because the company involved was a drugmaker there was not much of a stir. That’s because Abbott Laboratories is only the latest in a series of pharmaceutical producers to pay nine- and ten-figure amounts to settle charges that they engaged in illegal marketing practices.

Abbott’s deal with federal and state prosecutors involves Depakote, which was approved by the Food and Drug Administration to treat seizures but which Abbott was charged with promoting for unauthorized uses such as schizophrenia and for controlling agitation in elderly dementia patients. The company admitted that for eight years it maintained a specialized sales force to market Depakote to nursing homes for the latter unauthorized use. In other words, it systematically violated FDA rules and encouraged doctors and nursing homes to use the drug in potentially unsafe ways.

Abbott follows in the footsteps of other industry violators:

In November 2011 GlaxoSmithKline agreed to pay $3 billion to settle various federal investigations, including one involving the illegal marketing of its diabetes drug Avandia.

In September 2010 Novartis agreed to pay $422 million to settle charges that it had illegally marketed its anti-seizure medication Trileptal and five other drugs.

In April 2010 AstraZeneca agreed to pay $520 million to settle charges relating to the marketing of its schizophrenia drug Seroquel.

In September 2009 Pfizer agreed to pay $2.3 billion to settle charges stemming from the illegal promotion of its anti-inflammatory drug Bextra prior to its being taken off the market entirely because of concerns that it was unsafe for any use.

In January 2009 Eli Lilly agreed the pay $1.4 billion—then the largest individual corporate criminal fine in the history of the U.S. Justice Department—for illegal marketing of its anti-psychotic drug Zyprexa.

The wave of off-label marketing settlements began in 2004, when Pfizer agreed to pay $430 million to resolve criminal and civil charges brought against Warner-Lambert (which Pfizer had acquired four years earlier) for providing financial inducements and otherwise encouraging doctors to prescribe its epilepsy drug Neurontin for other unapproved uses.

Soon just about every drugmaker of significance ended up reaching one of these agreements with prosecutors and shelled out what appeared to be hefty penalties. In fact, the amounts were modest in comparison to the potential revenue the companies could rake in by selling the drugs for uses far beyond what the FDA review process had deemed safe. A 2009 investigation by David Evans of Bloomberg noted that the $2.3 billion penalty Pfizer paid in connection with Bextra was only 14 percent of the $16.8 billion in revenue it had enjoyed from that drug over the previous seven years.

The company’s 2004 settlement should have been a deterrent against further off-label marketing, but, according to Bloomberg, Pfizer went right on doing it. Seeking maximum sales, regardless of restrictions set by the FDA, was an ingrained part of the company’s modus operandi. When the 2009 settlement was announced, John Kopchinski, a former Pfizer sales rep turned whistleblower, was quoted as saying: “The whole culture of Pfizer is driven by sales, and if you didn’t sell drugs illegally, you were not seen as a team player.”

Compared to other forms of corporate misconduct, such as securities violations, the drug companies are much more likely to have to admit to criminal violations in the off-label marketing cases. And the penalties are far larger than those imposed for most environmental and labor violations.

Yet these seemingly harsher enforcement practices appear not to have been very effective in putting an end to the illegal activity. In fact, the willingness of the drug industry to flout the drug safety laws raises serious questions about the effectiveness of FDA regulations and the federal criminal justice system in general. If a group of companies know that they can repeatedly break the rules and face consequences that fall far short of the potential gains from the illegal behavior, enforcement has little meaning.

What makes the situation even more outrageous is that off-label market is just one of numerous ways that the drug industry regularly violates the law—whether by defrauding federal programs such as Medicare or by covering up safety risks related to the approved uses of certain drugs.

The one thing that makes drug industry executives a bit nervous is that federal prosecutors have begun to show interest in reviving what is known as the responsible corporate officer doctrine, a provision of U.S. food and drug laws that could be used to hold executives personally and criminally responsible for violations. So far, the doctrine has been applied to only a few small fish. But if Big Pharma CEOs start appearing in perp walks, the industry may finally realize it is not above the law.

The recently released UK parliamentary report on the phone hacking scandal involving News Corporation is destined to become a classic exposition of corporate misconduct.

Its authors appear to have exhausted their thesaurus in coming up with various ways of accusing the company and its top executives, including CEO Rupert Murdoch, of deceit. The company’s long-time claim that the hacking was the work of a single “rogue reporter” is described as “false” (p.7) and “no longer [having] any shred of credibility” (p.67). Various assertions made by the company are said to have been “proven to be untrue” (p.9). Company officials are portrayed as having acted “to perpetuate a falsehood” (p.84), “failing to release to the Committee documents that would have helped to expose the truth” (p.14) and as having “repeatedly stonewalled, obfuscated and misled” (p.68).

The report does not come out and directly call Rupert Murdoch a dirty rotten liar, but it makes the same point in a more biting way when it says of the media mogul’s official testimony: “Rupert Murdoch has demonstrated excellent powers of recall and grasp of detail, when it has suited him” (p.68).

In language rare for a government document to use about a powerful corporation and its top executive, the report declares:

On the basis of the facts and evidence before the Committee, we conclude that, if at all relevant times Rupert Murdoch did not take steps to become fully informed about phone-hacking, he turned a blind eye and exhibited wilful blindness to what was going on in his companies and publications. This culture, we consider, permeated from the top throughout the organisation and speaks volumes about the lack of effective corporate governance at News Corporation and News International. We conclude, therefore, that Rupert Murdoch is not a fit person to exercise the stewardship of a major international company (p.70).

As satisfying as this statement is to read, my primary reaction is: what took so long? Murdoch has been the CEO of News Corp. for more than 30 years, and during that time he has done untold damage to the integrity and quality of the media industry worldwide. The phone hacking scandal was not an aberration in the history of the company or the career of its leader.

Murdoch has been unfit to lead at least since the 1970s, when he began acquiring major publications in the United Kingdom and the United States and infusing them with an insidious combination of sensationalism and Neanderthal politics. In the UK he also declared war on the newspaper unions.

Once he was firmly established as a print baron, Murdoch moved into broadcasting and film through the acquisition of Metromedia’s U.S. TV stations and the Twentieth Century-Fox movie studio. In the process he ran roughshod over federal newspaper/broadcasting cross-ownership regulations and played a major role in the decision by the feds to undermine those rules. Murdoch used his U.S. broadcasting empire not just to make money but to exercise a toxic influence on political discourse, especially through the Fox News Channel launched in 1996.

For Murdoch there has never been a clear dividing line between business and politics. He’s used his properties to promote his political views, and he’s used his political connections—even in a place such as China—to advance his business interests.

This practice has extended into the realm of book publishing, in which Murdoch has played a major role since the acquisition of HarperCollins (previously Harper & Row) in 1987. Murdoch has been accused of using Harper to curry favor with key political figures via lavish book deals. The most notorious of these cases involved none other than Newt Gingrich, who was revealed in 1994 to have received a $4.5 million advance on a two-book deal at a time when he was Speaker of the House and thus in a position to influence legislation to the benefit of News Corp.

It came out that Gingrich met with Murdoch personally shortly before signing the deal was struck. Although Gingrich called the criticism “grotesque and disgusting,” the controversy forced him to forgo the advance. HarperCollins also offered generous advances to other public figures such as Supreme Court Justice Clarence Thomas.

While the legal troubles of Murdoch and News Corp. continue in the UK, the question is whether there will be consequences on this side of the Atlantic, where the company is headquartered. The bribery aspects of the phone hacking call out for prosecution under the Foreign Corrupt Practices Act, and there has been speculation about such as investigation since last summer.

For too long, Murdoch has sidestepped U.S. law to build his empire, even going so far as to become an American citizen to get around restrictions on foreign media ownership. There would a delicious irony if what finally brought his comeuppance is misbehavior outside the country.